Monday, 10 December 2018

Ontario's Non-Profit Housing Co-ops: A great place to live!?

Residential Co-op Housing–How good is it?

From time to time I get questions about Non-Profit Housing Co-operatives and usually the questions turn on how the Co-op is governed.  Sometimes the question comes from people thinking of moving to a Co-op and other times it is from people who are having a difficult time in the Co-op with either the Co-op taking action against them or the Co-op not doing anything to address complaints.


As this is a Residential Landlord and Tenant Blog you would think that Ontario’s Residential Tenancies Act would play a large role in the operations of an Ontario Non-Profit Housing Co-operative.  That, however, is entirely wrong headed and not the case at all.  The applicability of the Residential Tenancies Act is very limited in scope.

Ontario Non-Profit Housing Co-operatives are actually governed by the Co-operative Corporations Act.   For the most part, you are going to be interested in section 171 of the Co-operative Corporations Act through to section 171.25, however, the rest of the Act is relevant with respect to other functions of the Co-op—for example Directors and Officers in s. 85 to 110.

The Co-operative Corporations Act envisions the establishment of a self-governing community.   The structure of the community (in the housing context) is that the people living in the Co-op become “members”.  As a member of the Co-op there are certain rights and responsibilities and by agreeing to be a member you agree to be bound to the Co-op rules and by-laws.   In a non-profit housing co-operative being a member gets you the right to occupy a rental unit (a “member’s unit).  Note that it is possible that you could not be a member and that you may be allowed to rent a non-member’s unit–though this is rare.

 Getting into a Co-op usually involves an application process, various forms, and interviews with membership committees.  The decision of the membership committee is often referred to the Board of Directors for a final approval.  There are a great number of committees in the Co-op, from membership, maintenance, social, landscaping, security, etc. etc..   There is no limit on the number of committees that a Co-op might have.  Quite normally, members of a Co-op are required to participate in the work and life of the Co-op as a condition of their membership.  Failing to participate (i.e. showing up for meetings, working on committees) can be grounds to terminate membership and occupancy rights (i.e. eviction).

The committees are formed from members in the Co-op and most often are simply made up of volunteers.  The very important committees, the ones dealing with money, membership, subsidies, tend to be governed by very strict Rules and Policies.  Other committees can be less formal.

WHAT ARE THE RULES?

To a great extent the rules governing life in the Co-op are dictated by the Members who decide through majority vote on what the Rules are.   The Rules are reflected in By-laws and Resolutions that are passed at meetings of the Co-operative.  In most Co-ops the members elect a Board of Directors (again mainly from the members of the Co-op).  The Board of directors then appoints from their number various officers (President, Treasurer, Secretary, etc.).  The Board of Directors then typically hires a property management company as its employee to manage the day to day affairs of the Co-op.  The property management company may have other employees and may also rely on some volunteers from the Co-op to work in the office.  The Board of Director positions are unpaid while the Property Manager is a paid position.

The scope of the rules and by-laws can and usually are very broad.  The main by-law that typically interests members the most is the “Occupancy By-law”.  This by-law, in most co-op’s controls the behaviour among members, sets out expectations, and controls the relationships between the members and the Co-op.  You can find any unique membership requirements in this By-law and it is the one by-law that members should read at least once and preferably before or when joining a Co-op.

THE MEMBERS DON”T LIKE ME—now what?

Living in a Co-op can be a stressful adventure.  There can be cliques and it is possible for “groups” to form.  You sometimes hear the comment that it is a “little like high-school”.  That may or may not be the case but it is important to realize that in a Co-op your reputation and interaction with your co-members is indeed important.  While you do not need to get along with absolutely everyone, you need to realize that it is your co-members who are often sitting in judgment of you and determining whether complaints about you or deciding what steps a Co-op should take against you for your actions.

Complaints from Co-op members, about another member, typically first go to the Property Manager.  The Property Manager—if it is a good manager—will know most of the Co-op members and hence will already have a sense about the merit of the complaint(s).  Typically, the manager will try to find a solution and will try to bring some peace to the issue that is being raised.  Often times this will be successful and the issue dies there.  However, where the issue is not solved and the problem needs to be escalated it is the Board of Directors that now receives the complaint.  The Board may give the manager instructions or alternatively the Board may ask the manager to invite the complained about member, or the complainant, to a meeting of the Board.  That invitation follows a strict set of rules and specific information needs to be disclosed to the member.

A meeting with the Board can led to a wide variety of outcomes.  The Board could cause  membership and occupancy rights to be terminated or it could enter into some kind of performance agreement or it could simply decide to take no further action.  In any event, it is at the meeting with the Board that a member’s reputation will precede them and serious decisions affecting continued housing can be made. 

If the Board of Directors decides that complaints against a member are well founded, and that there is no hope for working it out, they could decide to send the member a letter terminating membership and occupancy rights as of a certain date.  Once that is done, the Co-op will then likely serve a Notice of Termination under the provisions of the Residential Tenancies Act. specifically Part V.1 which deals with Housing Co-operatives.

In the not too long ago past, members who were having their membership and occupancy rights terminated were entitled to appeal to the membership of the Co-op at a meeting.  These meetings, from a purely academic perspective, were wonderfully wild and crazy exhibitions of direct democracy in action.   Other than that, the meetings were (in my opinion) brutal.  The appeal meetings required members to speak in public, argue why they should not be evicted and confront their neighbours and whoever it is who was complaining.  While one would hope that the members listening to the appeal would act like Judges–that was rarely the case.  Popularity certainly mattered.

For the most part, the appeals to the membership in most Co-ops in Ontario have now been removed from the By-laws.  The appeal to the Membership has been replaced by the Landlord and Tenant Board process and the Notices of Termination that must be served by the Co-op to terminate membership and occupancy rights.

The Landlord and Tenant Board process can be considered a replacement for the Appeal to the Membership because the Residential Tenancies Act–for some kind of complaints and allegations, makes the decision to terminate membership and occupancy rights voidable.  This means that the actual Notices of Termination (for Co-op’s), will reverse the decision of the Board of Directors if certain conditions are met that are set out in the Forms.

There are certain Notices, that once served are not voidable.  For example, for committing illegal acts or impairing safety.  If such a Notice of Termination is served there is no automatic voiding of that notice by changing behaviour.  Hence, an instance of criminality or seriously impairing the safety of another person is indeed grounds to terminate membership and occupancy rights.

There is still, however, another chance for members who have been served a Notice of Termination.  The final steps at the Landlord and Tenant Board include a mediation/case management hearing and ultimately a hearing before an adjudicator.  At the ultimate hearing the adjudicator retains a residual discretion to NOT terminate membership and occupancy rights if the adjudicator is satisfied that Justice would be best served by not terminating those rights.  The adjudicator can make a probation like Order (a conditional Order), preserving membership and occupancy rights so long as the member does or does not do certain things.  If the member complies, the decision of the Board of Directors to terminate the member is effectively over-ruled by the Landlord and Tenant Board.


ACTION AGAINST A CO-OP

Some of you will be familiar with the rights that tenant’s have at the Landlord and Tenant Board to bring tenant applications against landlords for maintenance issues or harassment, obstruction, threatening or even interfering with a tenant’s quiet enjoyment of the rental property.  Forget everything that you know about that process in relation to Co-ops.  Co-op members have no recourse to the Landlord and Tenant Board. 

Co-op members must effectively work through the governance structure of the Co-op to get things done.  If getting action is too difficult or impossible then a Co-op member, properly motivated and with a good amount of money at their disposal, could apply to Court in certain instances to force compliance with the member’s request.

PART II on Co-op’s will be upcoming, so look for it.  I will right about Co-op meetings and the election process.  It is truly something to behold!



Michael K. E. Thiele
www.ottawalawyers.com

Tuesday, 4 December 2018

Privacy: When tenants complain about other tenants

PRIVACY: HOW MUCH CAN YOU TELL THE COMPLAINING TENANT
about the steps taken against the other tenant


The Ontario Residential Tenancies Act requires the landlord to deal with complaints about tenants made by their other tenants.  The landlord, like it or not, is the cop/teacher/parent that manages the relationships in the rental complex so that all tenants have quiet enjoyment of their rental unit.  If a landlord refuses to fulfill his duty and deal with complaints then the complaining tenant will ultimately be in a position to bring an application against the landlord for failing to do his job.   That application, which will likely be brought in Form T2 before the Landlord and Tenant Board will likely seek a substantial abatement, an Order that the landlord do his job and probably a fine payable to the Ministry of Housing.


The landlord's job is not an easy one and in the course of following up on complaints the landlord might come across some concerning issues.  This article deals with the question of whether a landlord can tell a complaining tenant the intimate details of what the landlord discovers in dealing with a noise making (or otherwise trouble causing) tenant.

Imagine this example.  In a two unit building one tenant complains to the landlord that the other tenant is making noise well into the evening and that it is disturbing them.  The landlord receives the complaint and approaches the other tenant with the fact that a complaint was received.  The noise making tenant responds that he has a medical condition and the sound is a machine he uses for breathing (sleep apnea).   The landlord thanks the tenant for revealing this information and asks the tenant to take some steps to reduce the sound and the tenant agrees.   The landlord tells the complaining tenant “the issue is dealt with”, but provides no further details to the complaining tenant.  The landlord doesn't give details because the noise making tenant is embarrassed by the need for the machine because his sleep apnea is likely caused by weight gain and the tenant asked the landlord to treat the information as confidential.  

A few more weeks go by and the complaining tenant calls the landlord again and says that the noise in the evening continues.  Oddly, only at night when they are heading to bed.  The landlord says he will speak to the tenant again.  The landlord goes to the tenant and the tenant reveals that he took steps to reduce the sound and it is clear to the landlord that this has in fact been done.  The tenant then demonstrates the machine and the level of sound is minimal.  What is apparent to the landlord is that the upstairs tenant is now sensitive to this sound and at night, when the building is quiet, the sound may seem louder than it actually is.

The landlord explains to the tenant (whose machine is making the noise) that the other tenant can still hear the sound.  The tenant apologizes and says he will try something else.

In another month’s time, the situation repeats and the complaining tenant complains again.  The landlord returns to the tenant making the noise.  Again, he had taken steps to reduce the noise and again the landlord says that the other tenant is still complaining.   This time, the tenant moves his bedroom to another spot in the rental unit and there are no more complaints.

From the first complaint to the resolution of the complaint it takes 5 months.  During that entire time the landlord responded diligently to the complaining tenant’s complaints and approached the other tenant. However, due to his belief that the tenant who is being complained against has a privacy interest in the information that the tenant gives the landlord the landlord does not tell the complaining tenant the details about the situation with the neighbour.

Should the complaining tenant be entitled to know that his neighbour (who is making noise), has a medical condition and that he uses a machine to assist with his breathing at night?  Is this personal information confidential?  What if the complaining neighbour also has a strong dislike for the other tenant and the landlord suspects that the complaint is at least partially motivated by the complaining tenant’s dislike of the other tenant.  Does the fact of the tenants’ mutual dislike of each other make the privacy interests of each tenant even more serious?  How upset would the noise making tenant be if the landlord simply went to the complaining tenant and told him about the noise making tenant’s medical condition, what is causing it, steps that the tenant will take to deal with the concerns, etc..   Is that okay?

In this example, the landlord protected and kept confidential the information provided by the noise making tenant.  He simply thanked the complaining tenant and said the issue was being dealt with.


The complaining tenant felt ignored and came to believe that the landlord was ignoring the complaint and not respecting his rights to quiet enjoyment of his rental unit.  When he asked the landlord what was being done the landlord simply said that "appropriate steps" were being taken and that the complaining tenant should let him know if there were any more problems.  To the complaining tenant, this is just not good enough.  For over 5 months, the complaining tenant felt ignored and particularly upset that this other tenant (who he did not like anyway) was disturbing him in this way.

To deal with the issue, the complaining tenant files an application against the landlord seeking a rent abatement for 5 months on the basis that the landlord did nothing to deal with his complaints.  The rent abatement claimed is 30% of the rent for that entire period until the issue was finally resolved.  The tenant alleges that the landlord simply did nothing during that time to deal with his complaints and that he doesn’t believe that the landlord even spoke with the noise making tenant.

THE APPLICATION


It is not uncommon for tenants to make applications against landlords for the behaviour of other tenants.  This occurs because there is no direct right to make a claim against another tenant (by a tenant) at the Landlord and Tenant Board.  The Landlord and Tenant Board only adjudicates claims between landlord and tenant.

To defend an application by a tenant making these allegations a landlord necessarily has to advise the Board of the steps he took to deal with the noise making tenant.  The noise making tenant is not likely to be a party to the application and is quite unlikely to be present at the hearing against the landlord (though the landlord could summons the noise making tenant as a witness).  Is there any problem with the landlord disclosing the information he has collected about the noise making tenant to the Landlord and Tenant Board?  What if the information that the landlord collected included a report from the noise making tenant’s doctor–which report contains information like the noise making tenant's date of birth, details of his medical condition, details of his medication and dosages, referrals to other doctors, a diagnosis and prognosis.  Is the complaining tenant entitled to a copy of this report when the landlord wants to explain to the adjudicator what the results of his investigation were?

I put it to you that the landlord is between a rock and a hard place.  It is very difficult to imagine that the noise making tenant would be at all pleased that his personal information is being shared with another tenant who he does not like and is being discussed in an open forum like the Landlord and Tenant Board.   What then, does the law say about disclosing this information to other tenants and to the Landlord and Tenant Board?  Unfortunately, the Residential Tenancies Act says absolutely nothing useful about this problem.  The Landlord and Tenant Board Rules of Practice are also unhelpful.  Perhaps the answer lies in other legislation–but it is clear that the specific circumstances of the landlord and tenant relationship is not considered from a privacy perspective anywhere in statute law.

The problem described in this article is a problem that I indeed have encountered and indeed have made an issue of.  This week I received an interim Order from the LTB addressing the issue.  I am very thankful to Member Moniz for tackling the question because it is a hard question and I don’t know that the “right” answer is immediately obvious.  What does seem likely is that one side or the other is going to be unhappy depending on whether the information can be freely disclosed or not.

I want to share that interim Order with you in the pages below.  The conclusion it appears is that in the legal proceedings instituted by the complaining tenant the private information of the noise making tenant can be disclosed without getting the consent of that noise making tenant. 

There is nuance, of course, and I don’t think the decision stands for the proposition that all information can be disclosed freely without concern for the privacy of the noise making tenant.  However, I do think the decision stands for the proposition that information gathered during the course of the landlord’s investigation from the noise making tenant can be disclosed in the legal proceedings involving the complaining tenant without the consent of the noise making tenant being required.  The information needs to be disclosed in order for the landlord to defend himself from the complaining tenant's application and hence the confidentiality of the gathered information is waived.

Here is the decision–redacted in part–for you to consider.





Monday, 26 November 2018

Ontario's Standard Form Lease

Residential landlords looking for a template lease in Ontario

Fairly often I get an inquiry from a "new" landlord who is in the process of renting out their rental unit for the first time.  In getting ready to rent out the unit they are looking for a blank lease for their tenant(s) to sign.  For many years, this request for a blank lease brought on much consternation.  While a great deal of the rental relationship between landlord and tenant is governed by the Residential Tenancies Act (RTA), and further the Residential Tenancies Act makes any lease clause that is inconsistent with the RTA void (see section 4 RTA), a lease may still contain some unique clauses that are specific to the circumstances.

The "unique" requirements often led to a mish-mash of conditions and a merging of a variety of leases.  Still today you can find leases dealing with water-closets, coal chutes and stabling of horses.  The biggest problem in these leases is the inconsistency that arises through the lease.  Clauses are contradictory and the result is confusion and lack of clarity.  When this occurs, the law provides that any ambiguity is read or interpreted in favour of the party (usually the tenant) who did NOT draft the lease.   Hence, if you have a messy lease you will not be able to rely on vague terms to insist that the lease means one thing when it could reasonably bear the interpretation of meaning many other things.

The issue with confusing leases and bookstore leases (i.e. off the spinny self-help shelf) has been addressed by the government.  There is now a "standard form lease" that is required to be used in the vast majority of residential rental situations.   That lease can be found at this LINK which is the website for the Ontario Central Forms Repository.

This standard form lease became available and is required to be used in most private residential tenancy agreements entered on or after April 30, 2018.  The failure to use this form has potential negative consequences for landlords.  As you work your way through the form you will find spaces to include special clauses and specific rules for the rental unit.  Including unique clauses in this standard form does not make an otherwise illegal clause valid.  Anything "unique" that you want to include still needs to be consistent with the RTA.  

For the "new" landlord who is looking for a reasonable lease that is consistent with Ontario Law the standard form lease covers the bases.  It, through the formatting process will call your attention to some of the things that landlords may want to include in a lease that they technically do not have to address (ex. smoking).  As time goes on, a landlord may discover that there are certain rules and requirements in relation to the property that in future versions of the lease they can add.

Michael K. E. Thiele
www.ottawalawyers.com

Sunday, 25 November 2018

EVICTION FOR LANDLORD'S OWN USE (or his family's use)

EVICTION BECAUSE THE LANDLORD IS MOVING IN (Possibly in bad faith)
the new rules


The Residential Tenancies Act and at least the last two previous versions of the residential tenancies law in Ontario has allowed a landlord to evict a sitting tenant for no reason other than the landlord wanting to take over the rental unit for themselves, their family members (the relationship being designated in the law), or for care givers.  The notice period was then and still is 60 days to the end of term.  The notice form is a form N12.

Tenancies can be terminated regardless of any fault or lack of fault on the part of the tenant.  Good tenants are as likely to be evicted as bad tenants.  The N12 (Landlord’s Own Use) process does not require the tenant to have done anything to justify termination for this purpose.

Historically, tenants have challenged the N12 (Landlord’s Own use) on the basis of the landlord “wanting” the rental unit for their own use or “needing” the rental unit for their own use.   The difference between “want” and “need” is significant and where the landlord by accident allowed the analysis to become about “need” then the Ontario Landlord and Tenant Board would look at the legitimacy of the “need” and assess whether the expressed need was legitimate and asserted in “good faith”.   

When landlords did not stumble into asserting a “need” but simply stood firm on “wanting” the rental unit the analysis at the Landlord and Tenant Board focused more or entirely on the question of whether the landlord required the rental unit “in good faith” for residential purposes.    The LTB would analyze the evidence to determine why the N12 was served and whether the landlord or the person he indicated on the form was apparently going to move into the rental unit.  An affidavit from the person who was claiming to move in was also provided to the LTB in the application process.

Unfortunately,  the LTB’s ability to analyze the landlord’s intent was rather limited.  If a landlord swears “We’re moving in” and there are no surrounding facts available to the tenant to prove otherwise the application was normally granted.   For many years, the LTB did not worry too much about granting the Order because the RTA provided a remedy if the landlord did not move in.  However, with the passage of time it became readily apparent that the remedy for a false N12 was easily averted and tenants who moved out only to find their unit up for rent again (at a higher rent), ended up with no effective recourse or remedy.

The Landlord’s Own Use notice was increasingly a silver bullet that could kill any tenancy.  Proving that a landlord has served an N12 in bad faith is a very difficult thing to do if the landlord is careful and doesn’t say too much.  While a tenant’s suspicions may be strong, the burden to prove that the N12 was served in bad faith rests with the tenant.  If the tenant is unable to prove that bad faith then the eviction order was/is very likely to be granted albeit normally with a little bit of extra time.

ABUSE OF THE N12

Over many years it became obvious to those of us working in residential landlord and tenant law that the N12 (termination for landlord’s own use) was being abused by landlords as a simple way to evict a tenant without any real consequence. In fact, I had and still have many cases where licenced realtors are giving advice to landlords to serve an N12 to get possession to make it easier to sell a property.  This is entirely contrary to the RTA but it was quite common.

The N12 (Landlord’s own use) was in the early years interpreted strictly.  At one time it was impossible for a corporate landlord to take up residence in an apartment.  It was believed that a corporation couldn’t live in an apartment. Over time that changed and where a corporation was closely held (one shareholder) it was determined that the shareholder could move in and then it was determined that the shareholder’s family member could move in.  The effect was an expansion of the number of ways that a tenant (who was doing nothing wrong) could be evicted from their home.

THE CHANGES

The abuses finally became too much and the Residential Tenancies Act has been amended with respect to a “Landlord’s Own Use” application [Form N12].  The applicable residential tenancies act section is section 48.  This section has now been amended to make the N12 more difficult and more costly to use.  

These are the major changes:

1.    When serving an N12 the landlord or his family member designate must require the rental unit for residential purposes and must intend on living there for at least one year (section 48(1) RTA);
2.    Once the landlord serves an N12 for landlord’s own use the landlord must pay the tenant compensation equal to one month of rent or offer the tenant an alternate and acceptable rental unit (section 48.1 RTA);
3.    The N12 may only be served if the rental unit is owned in whole or in part by an individual (section 48(5)(a));
4.    The landlord is an individual (section 48(5)(b)).

The requirement that the N12 notice be served in “good faith” and that the rental unit is required for residential purposes continues to be a prerequisite to serving the N12.

As you can see from these changes the use of an N12 is now more onerous.  It is not impossible, but there is now a greater basis on which the tenant can challenge an N12.  Corporate landlords may no longer serve an N12.  If the landlord on a lease is a property management company it is arguable that an N12 can not be served.   There appears to be a greater barrier to landlord’s using the N12 to evict tenants.   The requirement that a landlord or his family member live in a rental unit for at least one year makes temporary living arrangements impossible.  The one year requirement allows for a greater questioning of prospective landlord occupiers, especially children who are often the intended beneficiaries of N12’s.  

The compensation requirement is another interesting and new requirement.  I read the section as requiring payment upon service of the N12 regardless of whether the landlord follows through on the N12. As soon as the N12 is served, compensation equal to a month’s rent is due to the tenant.  I believe this is a fair interpretation of this section given the apparent intent to limit the improper use of N12’s.  Requiring compensation to be paid is a good way to stop frivolous use the N12 or using the N12 as a threat.  I have seen too many times where landlord’s serve N12’s just to see what happens and to see if a tenant will leave because of it. Currently, landlord’s are arguing that the compensation does not need to be paid if the Landlord does not apply to the LTB on the N12.  I disagree with this position.  As far as a I know there is no binding authority on this point at the time of writing this article.

THE HEARING PROCESS

The process before the Board remains as it always has.  A landlord may apply to the LTB, based on an N12, at any time after service of the N12.  The notice period of 60 days (to the end of term), continues to only be a minimum notice period and not a maximum.  Hence a landlord who absolutely needs to know when they are getting the rental unit should apply to the Board immediately after serving the N12.  The LTB is fully authorized to extend the 60 day notice period to a future date that seems fair under the circumstances.  Because the tenant is not at “fault” in an N12 situation the Board looks favourably at tenants and their particular needs.  If a tenant has a child in school and wants a few extra months to allow the child to finish school then that extension of time is likely to be allowed.  There are many many reasons for the LTB to extend the termination date even if the landlord is found to have served the N12 in good faith.

Because you can not know for certain when the LTB will terminate the tenancy it is a good idea to apply sooner than later, even if the tenant advises that they will be moving.   Regardless of what the tenant says, it is only lawful to evict the tenant with an Order of the LTB.

Michael K. E. Thiele

www.ottawalawyers.com

Friday, 23 November 2018

Making Noise--what is the cut-off?

Noise by-laws and the consequences for making noise

A very common problem is with tenants making noise in apartment buildings.  The noise can be loud talking, arguments, stereos, blasting music, party noise, televisions too loud, gaming systems and the games on them making war noises, crying babies, barking dogs, walking like an elephant on the floor,  and all other kinds of noise arising from tenants and their guests living their lives.  What are the rules about dealing with noise?

There is a very large red-herring that always interrupts this analysis.  That red-herring (i.e. something that does not actually mean anything but seems like it might), is the noise by-law passed by a city, town, or township where the rental unit is located. 

Tenant's who make noise will, when confronted, will often say that they quiet down at 10 p.m. or 11:00 p.m. as the by-law requires.  The implication is that until the time set out in the by-law they can play the music as loud as they want or have as many people shouting and carrying on as they wish.  So long as they comply with the by-law they feel that what they are doing is legal.

Certainly, if a municipal by-law requires a quiet period after a certain hour or prohibits certain activities before a certain hour then the impression is that noise before or after the time in the by-law is legally permissible.  For the purposes of landlord and tenant law this is absolutely 100% false.

The Residential Tenancies Act controls noise and all behaviour of other tenants 24 hours a day, 365 days a year.  That control is set out in section 64 (among others) of the Residential Tenancies Act.  In that section tenants are prohibited from substantially interfering with the reasonable enjoyment of the premises by other tenants and the landlord.  Loud noise that at any time of the day substantially interferes with the reasonable enjoyment of the premises by any other tenant is prohibited.  This is the case regardless of what the noise by-law says.

The key to the RTA requirement lies in the words "substantial" and "reasonable".  There is no noise bylaw and no RTA requirement that imposes absolute quiet in any residential complex.  This does not mean that some tenants will not be disturbed.  For example--a blender at 1:00 a.m. being used to make a breakfast for a tenant on shift work might very well be quite annoying to a neighbour who can hear this blender.  Does this blender noise contravene a by-law or the RTA?  Very likely not.  While the noise is undoubtedly bothering neighbours, the use of the blender at that time and for that purpose is "objectively" reasonable.   The problem is not actually the use of the blender at that time, the problem is likely that the walls are too thin, not sound insulated, or the rental unit is very old or it wasn't originally constructed for multiple-family occupation.   This problem, then, becomes the reality of communal tenant living in that building.   I know of a great many buildings in this region (Ottawa), where neighbours are fully aware of the intimate habits and daily routines of their immediate neighbours.  They know these things not because they're snooping but simply because the noise carries and you can hear everything just walking down the hallway or while sitting on your living room couch.   Perhaps the more startling revelation is when tenants realize that if they can hear the neighbours then the neighbours can hear them too.

Back to the blender example.  If a neighbour decides to be anti-social and starts turning on a blender, or two blenders, at 1:00 a.m., and leaves it running for 20 minutes just to annoy the neighbours then this likely is a breach of the RTA.  If a complaint to the landlord results in an investigation that determines the noise is being made to bother people then eviction is on the table and the tenancy can be terminated through the N5 Termination Notice process.  So, intent matters!  If a neighbour is trying to be annoying and has no reasonable regard for the peace and quiet of the neighbours then they can be evicted for the noise.   The RTA, through the hearing process and eviction procedures will impose on tenants "reasonable" behaviour and to an extent respectful behaviour for neighbours.  However, the RTA will not prohibit all noise or seek to impose onerous conditions for the benefit of a tenant who is hyper-sensitive or who wants absolute peace and quiet.  This is even the case if the noise is "new" because of new tenants and the tenant complaining had perfect quiet for many years before.

Michael K. E. Thiele
www.ottawalawyers.com

Thursday, 22 November 2018

Proof of your case at the Ontario Landlord and Tenant Board

THE BURDEN OF PROOF AT THE LANDLORD AND TENANT BOARD

Most people are familiar with the concept of the “burden of proof” largely because you hear it referred to in movies and on television.  The phrase “beyond a reasonable doubt” sounds familiar to most people and most people when they hear “beyond a reasonable doubt” will think about the concept of being “innocent until proven guilty”.  These two phrases are grounded in criminal law and are the foundation of a presumption of innocence.   For cases involving criminal acts or even quasi-criminal acts, the law presumes that it is better to let some guilty people go free than it is to convict some innocent people of crimes that they did not commit.  Hence, the burden of proof can be difficult to meet.

The burden of proof or the “standard of proof” that people may not be so familiar with is the civil standard of proof.  The civil standard is the standard that applies in Landlord and Tenant Board matters.  This standard requires the applicant (either the landlord or tenant depending on who filed the application), to prove the allegations on a “balance of probabilities”.  You can understand the “balance of probabilities” as meaning “more likely than not” or “50% plus 1".  Relatively recent appellate caselaw has determined that there are only two standard’s of proof and that there is no sliding scale in the civil standard.  To meet the civil standard of proof the evidence in support of that burden needs to be “clear, cogent, and convincing”.


To be clear, the standard of proof at the Landlord and Tenant Board is the civil standard.  This should be noted even though the Landlord and Tenant Board will hear allegations against tenants that constitute an illegal and even criminal act.  Where a landlord is seeking to terminate a tenancy and evict a tenant because of an illegal act there is no need for a criminal charge or conviction of the tenant.  The landlord can win the application by proving that the illegal act or criminal activity occurred on the civil standard (more likely than not) as opposed to “beyond a reasonable doubt”.   The effect of the different standard is that it is possible to win at the LTB but possible for the Crown to lose in criminal court simply because the burden of proof in the criminal matter is higher.


Shifting burdens  

A shifting burden of proof is when one of the parties is required to offer a certain minimum level of evidence/proof (and once that’s done) the burden shifts to the other side to disprove the minimum level of evidence/proof that caused the shift in burden.   The prime example of this at the LTB is in non-payment of rent applications.

In an application for termination for non-payment of rent and eviction, the landlord has the first obligation to “prove” that the tenant did not pay the rent.  That burden is very easily met because all that the landlord has to do is say “the tenant did not pay the rent”.  That is enough to establish that the tenant did not pay the rent.  The landlord is not required to show anything more to establish with clear, cogent, and convincing evidence that the tenant did not pay the rent.

Once the landlord says “the rent remains unpaid” the burden shifts to the tenant to prove that the rent was paid.  Hence, the burden shifts to the tenant to prove that the rent the landlord claims is unpaid was in fact paid.   Normally this is not such a big deal.  A cancelled cheque, an e-transfer, money order, a signed receipt, an admission from a rental officer, are all effective ways to prove that rent was indeed paid.

What is unfortunate, for tenants, is when rent is paid in “cash” and the tenant is not given a receipt.  How then does a tenant discharge the burden of proof when cash has been paid and they have no receipt?  Sometimes, the landlords refusal to acknowledge receipt of cash is just pure evil.  Other times, it is just an honest mistake.  And other times, it is the system that breaks down and the tenant is just stuck.  For instance, what if the standard way of paying is in cash with the cash dropped in a drop box outside the landlord’s office.  What happens if one night a clever thief figures out how to fish a cash loaded envelope out of the drop box leaving no trace of what they’ve done.  The tenant knows they paid but the landlord has no envelope and nothing seems to be wrong with the drop box.   Who will win that application at the LTB for terminating for non-payment of rent?  Based on the “shifting burden of proof”, in this case the advantage lies with the landlord.  


WHEN TO ARGUE THE BURDEN OF PROOF


The burden of proof is not to be ignored.  At the conclusion of the evidence the adjudicator is likely to ask the parties to make submissions.  The applicant (person who brought the application) goes first.   The applicant, having the burden of proof should be comparing the important evidence that the adjudicator heard and suggesting through argument what evidence the adjudicator should accept and why.  The applicant should suggest that the burden of proof has been discharged and that the case is proven.


The respondent on the other hand, will want to say that the burden of proof has not been met.  For example.  Where two people testify and each say the exact opposite of what the other person says (and presuming this is crucial evidence), the adjudicator will have to decide who to believe.  The respondent will likely suggest that the favourable evidence should be accepted and perhaps even argue that the evidence is contradictory and can not be resolved in favour of one side or the other.  If there is an unresolvable conflict in the evidence then the adjudicator would turn to the burden of proof and say “sorry applicant, you did not prove 50% plus 1 and therefore, because of the burden, you lose”.    Accordingly, it is possible for an adjudicator to say that she believes both sides equally and that because the applicant can’t tip the evidence in their favour it is a “tie”.  When there is a tie, the respondent wins.


Michael K. E. Thiele
www.ottawalawyers.com

PART II: Presenting your case at the Landlord and Tenant Board

Presenting your case at the Ontario Landlord and Tenant Board PART II

This article is a continuation of the theme of presenting your case at the Ontario Landlord and Tenant Board (LTB), whether you are a landlord or a tenant.  This article is written, not for lawyers and paralegals (but potentially helpful to them too) but for regular people who need to use the services of the adjudication process of the Ontario Landlord and Tenant Board.


The last article focused on process and how the LTB actually conducts its hearings. Recall that the formality of a court proceeding is completely alien at the LTB.  An adjudicator is directed to adopt a process—any kind of process---that allows people to know the case, understand the evidence, and be heard.

Yesterday, I was at the LTB here in Ottawa for a hearing that ultimately was adjourned to early December.  What was interesting was that in waiting for the start of the hearing the adjudicator decided (having read the file) that this case should be sent to a Hearing Management Conference (HMC).   A hearing management conference is entirely different than mediation and the focus of an HMC is not on resolution or mediation.  While mediation is voluntary, an HMC can be ordered by an adjudicator who is seeing issues with a particular case.


The goal of an HMC dovetails nicely with the point of this article and that is presentation of the case to the member.  Too often, applicants attend at the LTB and think that the best thing to do is to unload every fact, every issue, and every piece of evidence.  The problem with this is best highlighted by imagining the time it takes for the LTB to watch several “video clips”. Those clips, perhaps only a few minutes in length, need to be set up, watched, re-watched, stopped, explained by the person presenting the clip, cross-examined on, and determined whether the video clip has been altered, is a fair representation of what actually happened, and whether the video clip is more prejudicial than probative (i.e. misleading versus reliable) or more probative than prejudicial (i.e. reliable and representative of what happened versus misleading).


So, the HMC process involved being taken out of the hearing room and sitting with a Board mediator—who in the context of an HMC wears a different hat and is now case resolution officer.  These same mediators also wear another hat in the context of Case Management Hearings (CMH) which sometimes are ordered to proceed before the actual hearing and at these CMH’s the mediator has the authority to make Orders against the parties with respect to procedural issues.


In any event, the HMC is conducted for the purpose of determining whether there are agreed facts, whether all evidence has been disclosed, determine the issues (and narrow them if possible), determine the anticipated length of the hearing, determine who the witnesses are, determine whether amendments to applications are needed, whether accommodations for disabilities are required, and basically any other thing that might impact the hearing.   By going through an extensive checklist and having a longer discussion about how the case will go ahead (and not arguing about the facts), the intention is to streamline how the case proceeds so that as little time as possible is wasted.  Through this HMC, a party may get some guidance on how a particular adjudicator conducts hearings, and the likely process that will be followed.


The HMC I was in yesterday, resulted in an adjournment because it was clear that the case would take at least 4 hours and there was only and hour left in the hearing block.  Because of the HMC we were able to address the issue of whether we wanted to start now, cause this particular adjudicator to be seized with the case, and come back at some future date that might be several months down the road. [“seized” means that once an adjudicator starts hearing the case that adjudicator needs to be the one who finishes hearing the case].  For this case, neither side wanted to start and not finish because it is more difficult to keep yourself on track with months between hearing dates.


In my case yesterday, the HMC might also have managed to reduce the length of time needed to hear the evidence to the time available to hear the case.  That didn’t happen, but it might have and if that were successful then the efficiency of getting the case dealt with would have been worth the exercise of the HMC.



FOCUS, FOCUS, FOCUS.

The HMC, from the issues it addresses as noted above, aims to narrow the focus of the case to the key and important issues.  That goal, is also the goal that you (as the landlord or tenant) should be conscious of and aiming for.   Whether you are the side bringing the application or the responding side defending an application, being focused has a ton of benefits—the most important of which is that you are more likely to win the case.


How does being focused help you win?   The simple answer is that focusing your case forces you to understand your own case better. The better you understand your case, the more likely it is that you will be able to communicate your case to the adjudicator and therefore the adjudicator will understand what you are complaining about or will understand why you are not responsible for what the claim against you is for.


The ability to “focus” a case has a great many moving parts.  If you think you are just “fantastic” at being focused I can tell you without a doubt that you are wrong.   Brilliant trial lawyers with decades of experience, law clerks, paralegals, and support staff work hundreds of hours to “focus” their case.   While LTB hearings are not major trials there is still a similarity and arguably more difficulty at LTB (where the ability to be ambushed with evidence is a part of the process).


So what does the process of being focused look like?  There are of course the “facts” as you understand them.  Then there is the “law”.   Then there are the “witnesses”.  Then there is the “evidence”.  Then there is the format of the evidence (written, oral, digital, real).  Then there is the issue of “time available to present a case”.  Then there are the “human factors—nerves, perception, hearing, speaking, communicating”—in relation to every participant in the hearing.  Then there are rules of procedural fairness and natural justice. Then there is the unknown responding evidence and argument.  And to top it all off, there is rhetoric and the art of persuasion using all of these factors and likely others that I haven’t thought of now.  To “focus” you need to put all of these things together (which involves a fair amount of guesswork) and ultimately, tell a story.


At the heart of all cases there is a “story”.   The effective presentation of all cases is the art of story telling.  



Interesting Concepts—but my hearing is next week. Practical advice please!

Practical Tip #1

Collect all of the documents that you think you will need.  Typical documents include: the lease, notices of termination, emails, text messages, photographs, complaint letters, by-law reports, police reports, property standards orders, bounced cheques, bank statements, rental applications, and any other document that conceivably may be needed.

Put them in a logical order.  By date, by incident, or whatever makes sense.  

Create an index.  Page number each document.

Make 4 copies (one for each of: other side, adjudicator, witness, yourself).

Drive a staple through each copy.

The value of this is that you are now able to find any important document, and refer every single person to the page you want them to look at in seconds.

Doing this will endear you to the adjudicator who otherwise spends a ton of time looking for the “right” page etc..



Practical Tip #2

For yourself, create a flow chart (bullet points), of every critically important thing you want entered into evidence.  Write it out in a logical order (usually chronological).  This will be the order you present your case.  At each bullet point make a note of each page in your document brief (Tip #1 above), that supports the point you want to make.

If you follow your flow chart, regardless of how nervous you are, you will have presented your case and said all the things you wanted to say in support of your case.



Practical Tip #3

Take a hour or two to figure out the legal basis of your claim.  Yes, there are Forms to fill out at the LTB.   Each one of those forms is based on a section of the Residential Tenancies Act (RTA).  You can read the actual law that causes the form to be created.  You can do it for free from the comfort of your computer.  Search for the Residential Tenancies Act on www.canlii.org.  This is a free caselaw site.  You can read all of the laws in Canada here for free.  Narrow your search to Ontario, then search Residential Tenancies Act.   

Once you have the RTA in front of you, just browse the index to the RTA.  You will see the sections that apply to your case. Read those sections.  You don’t need to memorize or become a legal genius. Just get a sense of what the law says about the application you are bringing, or defending against.  The knowledge you gain from this can be tremendously valuable during the hearing.



Practical Tip #4

Go to the landlord and tenant board website.  You should again browse the Landlord and Tenant Board Rules of Practice.  Just read the ones that apply to your case. Further, browse the Interpretation Guidelines.  These Rules and Guidelines address the things that typically happen at the Board.  From adjournments, disclosure, fairness, service, etc., all of these issues are dealt with in the rules and guidelines. If you are familiar with “how the Board thinks” you have an advantage.


This article is running long so that will be it for now.  I will continue on with presenting your case at the LTB in a future article.


Michael K. E. Thiele
www.ottawalawyers.com

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.